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Neale v. United Way of Greater Kingsport

Court of Appeals of Tennessee, Knoxville

July 28, 2015

KINGSTON NEALE B/N/F DION RUSSELL
v.
UNITED WAY OF GREATER KINGSPORT ET AL.

Session April 14, 2015

Appeal from the Law Court for Sullivan County (Kingsport) No. C40238 John S. McLellan, III, Judge

Kyle D. Vaughan, Kingsport, Tennessee, for the appellant, Kingston Neale b/n/f Dion Russell.

S. Morris Hadden and Caroline Ross Williams, Kingsport, Tennessee, for the appellee, United Way of Greater Kingsport.

T. Kenan Smith, Knoxville, Tennessee, for the appellee, Boys and Girls Club of Greater Kingsport.

Thomas R. Frierson, II, J., delivered the opinion of the court, in which John W. McClarty and Brandon O. Gibson, JJ., joined.

OPINION

THOMAS R. FRIERSON, II, JUDGE

I. Factual and Procedural Background

The plaintiff father, Dion Russell ("Father"), filed this action as next friend of the minor child, Kingston Neale ("the Child"), who was nine years old at the time of the accident at issue. On April 18, 2011, the Child injured a finger on his right hand as he participated in a program known as "Mr. Bob's Workshop" at the facility operated by the co-defendant, the Boys and Girls Club of Greater Kingsport ("Boys and Girls Club"). The workshop was supervised by Bob Schrader, a Boys and Girls Club staff member. At the time of the accident, the co-defendant, United Way of Greater Kingsport ("United Way"), contributed funding to programs managed by the Boys and Girls Club.

The facts regarding exactly how the Child injured his finger were under some dispute in the parties' pleadings. According to the complaint, Mr. Schrader directed the Child to unplug an electric saw "or other woodcutting machine with a blade or cutting edge that was turning, " and the Child's finger was cut when he "placed his hand on the machine in order to keep his balance." During the Child's deposition testimony, however, he acknowledged that he unplugged the machine without being instructed to do so. He stated that his finger was injured when, seeing that the machine did not stop, he placed his finger on the rotating part of the machine to slow it down. The Boys and Girls Club averred in its answer to the complaint that the machine was an electric grinder and was in the process of rotating to a stop when the Child touched it. It is undisputed that the Child required medical treatment for the resultant injury. In the complaint, Father asserted that the Child suffered a severe laceration and permanent impairment to his finger, but Father presented no further detail regarding the nature of the impairment.

In March 2012, Father and the Child's mother, Jessica Neale ("Mother"), acting through their former counsel, jointly filed a complaint as next friends of the Child. A copy of this complaint does not appear in the record, but it is undisputed that the complaint also named the same defendants as those named in the current action. The original complaint was dismissed by voluntary nonsuit in July 2012.

On July 15, 2013, Father, acting without benefit of counsel, filed the instant complaint as next friend of the Child. Father alleged that Defendants had negligently allowed an inherently dangerous activity to take place on their premises and had failed to exercise proper judgment in their supervision despite knowing that the activity created an unreasonable risk of harm. He further asserted that Defendants' alleged negligence was willful and wanton so as to constitute gross negligence. Father requested damages in an unspecified amount to compensate for permanent impairment, pain and suffering, medical expenses, loss of earning capacity, and costs of bringing the suit.

The Boys and Girls Club filed an answer on August 2, 2013, denying all allegations of negligence and asserting the affirmative defense of comparative fault. United Way subsequently filed a separate answer, also denying all allegations of negligence and likewise asserting the defense of comparative fault. In addition, United Way averred that Father lacked standing to bring this action because he lived apart from Mother, was not the primary residential parent, and had presented no allegation that he had paid the Child's medical expenses. See Tenn. Code Ann. § 20-1-105(b) (providing that when a minor child's parents are living apart and one parent "has exclusive legal custody, " the custodial parent has "the sole right to maintain an action for the expenses and the actual loss of service resulting from an injury to the minor child, " except that the noncustodial parent may bring such an action for expenses that he or she has paid). United Way concomitantly filed a motion to dismiss the complaint on August 16, 2013.

On August 22, 2013, Father filed a response to the motion to dismiss, in which he requested that the trial court join Mother as a co-plaintiff in the action. Father argued that in the alternative, the court should not interpret Tennessee Code Annotated § 20-1-105(b) as barring his complaint because as the alternate residential parent, he maintained parental rights to the Child.

In March 2014, Defendants filed separate motions for summary judgment, both averring that Mr. Russell lacked standing to file the lawsuit pursuant to Tennessee Code Annotated § 20-1-105(b). United Way also maintained that it should be granted summary judgment because, although it provided funding to the Boys and Girls Club, it did not supervise, monitor, or direct Mr. Bob's Workshop. United Way attached to its motion, inter alia, excerpts from testimony provided through deposition by the Child, Mother, and Father. The Boys and Girls Club attached to its motion, inter alia, a copy of the parents' permanent parenting plan order entered by the Sullivan County Juvenile Court on May 21, 2008. According to the parenting plan, the juvenile court had designated Mother as the primary residential parent and granted to Father 111 days of co-parenting time per year. Mother testified that she believed the "most traumatizing thing" for the Child was "to keep living it [the accident] every day, every other day, every week." It is undisputed that Mother chose not to participate as a plaintiff or next friend of the Child in the instant action.

Father, by this time represented by his current counsel, filed a response to the Defendants' motions on May 1, 2014, requesting that the motions be held in abeyance pending further opportunity for discovery. He subsequently filed a motion to join Mother as an involuntary plaintiff pursuant to Tennessee Rule of Civil Procedure 19.01. Father also asserted in his response that as Tennessee Code Annotated § 20-1-105(b) is written, it violates the Equal Protection Clauses of the United States Constitution and Tennessee Constitution. [1]

Following a hearing, the trial court granted summary judgment in favor of the Defendants and dismissed the complaint with prejudice in an order entered June 13, 2014. The court found that Father lacked standing to bring the action pursuant to Tennessee Code Annotated § 20-1-105(b). The court made no explicit finding regarding Father's motion to join Ms. Neale as an involuntary plaintiff. Father timely appealed.

II. Issues Presented

Father presents two issues for our review, which we restate as follows:

1. Whether the trial court erred by determining that Father lacked standing to file this action pursuant to Tennessee ...

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